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What is a mutual will?

09/05/2016

by Access Legal

What is a mutual will?

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Mutual wills are relatively rare, fraught with difficulties and, frankly, should be avoided if at all possible.

It is very common for couples to make wills in identical terms but that doesn't make them mutual wills. Mutual wills (where they exist) are usually made by spouses or civil partners (although any two or more people can choose to make mutual wills) in a second marriage where one partner wishes to ensure that children from a previous relationship or marriage are protected. Trusts are the better option in this case. The problem with mutual wills arises from their inflexibility. Mutual wills are a rigid, legally binding, contractual arrangement between two or more testators (those people making the will). They are legally committed in each of their separate wills to dispose of their respective property in an exactly identical way, giving the nominated beneficiaries reciprocal benefits and inheritance, with penalties imposed if they ever change their mind or don't go through with those arrangements.

There is no such thing as a joint will

Mutual wills may also sometimes be referred to as 'joint wills', implying that there is single legal document covering all the testators involved. Despite what Wikipedia may tell you, there is no such thing as a 'joint will' if that is taken to mean a single document which covers both parties. Legally, a will is a completely separate document applying to an individual testator only. Mirror wills may also be similarly incorrectly called 'joint wills'. Mirror wills do achieve much the same effect intended for a mutual will where couples (usually a wife and husband or those in a civil partnership) make almost identical wills. In both mutual and mirror wills the contents and provisions of the wills is very similar and so they 'mirror' each other.

So what's the difference between mutual and mirror wills?

At first sight, the answer appears to be 'not a great deal'. However, the key point of difference in mutual wills is that they are a legally binding and enforceable contractual agreement by the testators not to alter their respective wills in any way at any time and especially not after the death of the first testator. On the other hand, each party to a mirror will fully accepts the right of the survivor to change his or her will. There is no real legal sanction possible with a mirror will to prevent the testators changing their respective wills - they simply have to trust that it doesn't happen. Of course, even with a standard will, there are some consequences if you don't live up to commitments made, especially if you'd given a verbal or written promise to someone assuring them that they'll inherit property or land. If they acted and relied on that promise, they can use the challenge of proprietary estoppel to have that promise honoured if it's revoked or not mentioned in your will.

Mutual wills are a binding contractual commitment

A mutual will is inflexible and does not rely on an understanding or some vague moral obligation to act as agreed in the event of one of the testators dying. The legally binding agreement underpinning mutual wills is that the survivor undertakes to honour the terms agreed and not to change the terms of their own will later and this can lead to problems. The parties involved in a mutual will have contractually agreed that they will not alter or revoke the terms of their will without the consent of the other testator. As soon as the first testator dies, their part of the contract is said to have been 'carried into execution'. The other party cannot then break the contract by changing their will, even if their changed life circumstances aside from the death of the first partner would warrant them doing this.

Mutual wills are binding only on death

Importantly, any agreement between the parties to a mutual will only become binding once one of them has died. Up to that point either of them can change their will at any time and has no real obligation to advise others involved that they have done so. Clearly though, in the spirit of upholding the contract into which all parties have entered, if one testator makes changes, the others ought to be advised and make similar changes to reflect the new provisions. However, if it's revealed that the first person to die did revoke or alter their mutual will during their lifetime, the surviving spouse or partner is freed from any obligation to honour their side of the contract. Indeed, if they so choose, they have the right to sue the estate of their deceased partner for damages due to breach of contract.

Providing clear proof of intent

The only possible advantage of making a mutual will and calling it such would be to provide clear evidence of testators' intentions in case a dispute arises or a disgruntled relative wishes to challenge the will. Should the will be contested by disappointed beneficiaries, it is very hard in practice to establish if there actually was an intention to make a binding agreement unless the document is clearly a mutual will. If the dispute goes to litigation, the court's usual 'default' position is to decide that there was no such intention, unless the testators' desire to make a mutual will is stated explicitly in the will or in writing elsewhere.

Why make a mutual will?

Mutual wills are preferred by couples in a second marriage with children from a previous relationship or marriage but are usually considered by 'first time' married couples or civil partners. These people consider mutual wills because they think they will impart absolute certainty in effecting agreements between them that, on death, they shall each leave their property to each other and/or their children. The most common (simple) example of a mutual will would be a husband leaving his property to a spouse for life with the remainder going to their son or daughter while the wife's will would leave her property to the husband for life with the remainder to the son or daughter (the same would apply to registered civil partners). After the husband's death, the wife is bound by the arrangement, so that on her death both estates would pass to their son or daughter. This remains the case even if the son or daughter dies before the wife, which can lead to additional complications

Mutual wills: on balance not a good idea?

Usually, the only guaranteed consequence of a mutual will is protracted litigation to sort out inheritance issues, so making such a will is generally discouraged by virtually every solicitor. If people insist on making mutual wills however, the agreement has to be set out clearly on the face of the will and also in other written evidence.

Mutual wills do nothing to prevent funds from being spent in the lifetime of the survivor and they offer no protection against assets and funds being used, for example, to pay care home fees even if the testators making the mutual will wished to prevent that. In order to achieve what the intention of a mutual will may have been, the use of a Trust by the first person to die is a much better solution and is what we would always recommend. If you think it likely that you might change your mind or alter your will as your circumstances change, then a mutual will is probably not for you.

Talk to us about the issues surrounding a mutual will and whether setting up a trust would be a better option for you. Give us a call for a no obligation chat on 03700 868 686 or contact us online. We can talk you through the options and whether we think that mutual will would be the right way forward in your unique circumstances. Alternatively if you;'re looking for information on contesting a will, please follow the link provided.